On November 26, 2013, Advocate General Cruz Villalòn (“AG”) of the European Court of Justice (“ECJ”) issued his opinion in case C-314/12 UPC Telekabel Wien. The Austrian Supreme Court referred to the ECJ the question on whether injunctions imposing to internet service providers (“ISP”) the adoption of blocking measures against copyright infringing websites are compatible or not with EU laws.
In the main proceedings, two movie production companies took action against the Austrian ISP UPC Telekabel Wien (“Telekabel”) seeking an injunction prohibiting the latter to provide access to a website (www.kino.to) containing copyright infringing material. The national court granted such injunction without mentioning the specific measures to be taken by Telekabel.
In the first place, the AG confirmed that ISPs can be the targeted with the injunctions provided under Article 8, paragraph 3 of the EC Directive 29/2001, regardless the absence of a contractual relationship between the ISP and the website operators.
As to the scope of the injunctions, AG’s opinion seems to confirm the ECJ’s previous decisions. AG took the view that “a general prohibition imposing an ISP to allow its costumers to access an infringing website would not be compatible with a reasonable balance of the rights involved, to be conducted in compliance with article 8, paragraph 3, directive 2001/29”.
AG has instead confirmed the lawfulness of injunctions in which specific blocking measures for infringing websites are imposed to ISPs. Such kind of measures would not be, in principle, disproportionate only because they entail relevant costs. The factual assessment of such proportionality shall instead be left to the national court.
It is now up to the ECJ to confirm or not AG’s conclusions.